## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 17

- 4672

_____________________________
C URTIS W AYNE H ODGES ,
Appellant,

v.

S TATE OF F LORIDA ,
Appellee.

_____________________________

On appeal from the Circuit Court for Nassau County

. Robert M. Foster , Judge

.
December 27, 2018

P ER C URIAM

.
In this appeal from his resentencing following the revocation of probation, Appellant raises three claims: (1) the trial court erred in denying his motion to dismiss for lack of jurisdiction because his probation had expired; (2) the trial court committed reversible error in fin ding that he violated his probation by leaving his county of residence and changing his approved residence without his probation officer’s consent; and (3) the trial court erred in not specifying the conditions violated in t he revocation order. For the

rea sons that follow, we affirm in part, reverse in part, and remand for further proceedings.2 I.

Appellant moved unsuccessfully to dismiss for lack of jurisdiction because his probation expired, asserting that the filing of an affidavit and issuance of an arrest warrant for technical violations of probation did not toll the probationary period. In doing so, he relied on Mobley v. State , 197 So. 3d 572 (Fla. 4th DCA 2016), in wh ich the Fourth District explained:

Section 948.06(1)(f) is clear that a warrant under section 901.02 is required in order for the probationary period to be tolled (except when one of the other two alternatives are applicable, as is not the case here). Sect ion 901.02 in turn requires that the warrant be for a “crime.” Here, the warrants issued were for violations of probation based on the failure to make restitution payments and a payment for drug testing. These are not “crimes.” The warrants were therefore not issued unde r section 901.02, and Appellant’ s probation was never tolled.

Id . at 574. However, in Williams v. State , 202 So. 3d 917 (Fla. 4th DCA 2016), the Fourth District held that when a defendant absconds from probation, an exception to its holding in Mobley is triggered, and the probationary period is tolled until the defendant is once more placed under probationary supervision.

More recently, the Second District explained that “our common law recognizes that a probationer’s absconsion from supervision during his probationary term, apart from section 948.06(1)(f)’s tolling provision, automatically tolls his term.” Canchola v. State , 43 Fla. L. Weekly D2092, D2093 (Fla. 2d DCA Sept. 7, 2018). The trial court denied A ppellant’s motion to dismi ss on the ground that A ppellant had been charged with absconding from supervisio n, which tolled the running of A ppellant’s probation.

At th e probation violation hearing, A ppellant ’s pr obation officer testified that A ppellant’s mother came to his office and informed him that A ppellant had not been home in a week. Appellant’s mother ac knowledged at the hearing that A ppellant had not been at her home for a week and that she did not know his whereabouts at that time. Thus, there was competent

, substantial3 evide nce that A ppellant had absconded for at least a week during his probationary term. If tolled for t he week that he had absconded, A ppellant’s probation would have expired on June 16, 2017. It appears undisputed that A ppellant was arrested on June 15, 2017
, for criminal charges in Duval County pursuant to a warrant under section 901.02. Because A ppellant was arrested on this warrant before his probation expired, his probation was tolled by op eration of section 948.06(1)(f). * Therefore, the trial court

pr operl y denied A ppellant’s motion to dismiss.

I I.

The trial court found that A ppellant vi olated his probation by leaving Nassau County, his county of residence, without the consent of his probation officer. The affidavit alleged that A ppellant violated this condition when he left Nassau County and entered Duval County on March 8, 2017.

However, no evidence was presented that A ppellant was in Duval County on March 8, 2017. The revocation of probation based on conduct not alleged in the affidavit constituted fundamental error and did not require a contemporaneous objection to preserve the claim for appellate review. Perkins v. State , 842 So. 2d 275, 277 (Fla. 1st DCA 2003). Therefore, the tri al court erred in finding that A ppellant violat ed his probation by leaving his county of residence without his probation officer’s consent based on acts not charged in the violation of probation affidavit. See T.T. v. State , 82 So. 3d 1019 (Fla. 4th DCA 2011) (reversing the trial court’s finding that T .T. violated his probation where the affidavit alleged that he violated probation by skipping school or being tardy on specific dates, but no evidence was presented that he violated his probation on those dates); Cherington v. State , 24 So. 3d 658, 660

- 61 (Fla. 2d DCA 2009) (holding that the trial court erred in finding a violation of probation where Cherington admitted to possessing and using cocaine on some undetermined date rather than on the date

* Effective July 1, 2017, the legislature amended section 948.06(1)(f) to remove the requirement that the warrant be issued under section 901.02. Ch. 2017

- 115, §§ 9, 20, Laws of Fla. This amendmen t is not applicable here since A ppellant’s probation expired before July 1, 2017.4 specified in the affidavit of violation); Perkins , 842 So . 2d at 277 (holding that the trial court’s finding that Perkins violated his probation by absconding during the months of May through November constituted fundamental error where the affidavit did not allege that he had absconded during those months); Joh nson v. State , 811 So. 2d 749 (Fla. 2d DCA 2002) (holding that the trial court could not find that Johnson violated his community control by being absent from his approved residence on April 11, 2000, where the affidavit alleged that Johnson failed to rema in confined to his approved residence on March 31, 2000).

The trial court further found tha t A ppellant violated his probation by changing his residence without the cons ent of his probation officer. Appellant’s probation officer testified that he filed th i s charge based solely on what A ppellant’s mother told him during a meeting at his office. Such hearsay alone is no t sufficient to establish that A ppellant changed his residence in the absence of nonhearsay evidence to corroborate it. See Rutland v. State

, 166 So. 3d 878 (Fla. 1st DCA 2015) ; Webb v. State , 154 So. 3d 1186, 1188 (Fla. 4th DCA 2015) ; Cito v. State , 721 So. 2d 1192 (Fla. 2d DCA 1998) . Although A ppellant’s mother testified at the probation violation hea ring, she denied that A ppellant had changed his residenc e. At most, she conceded that A ppellant had been absent from the residence for a week and that she did not know his whereabouts at that time.

A probationer’s absence from an approved residence for a brief time during which the probationer’s l ocation was unknown would not support a finding that the probationer violated a condition of probation by changing his residence without first procuring the consent of his probation officer. Tobias v. State , 641 So. 2d 194 (Fla. 4th DCA 1994); accord Gauth ier v. State , 949 So. 2d 326, 326

- 27 (Fla. 5th DCA 2007); Johnson v. State , 668 So. 2d 240, 241 (Fla. 1st DCA 1996). Therefore, the tri al court erred in finding that A ppellant violated his probation by changing his residence without his probation officer’s consent.

Howe ver, A ppellant was also charged with violating his probation by committing new law violations in Du v al County, which would support the revocation of his probation

, if proven. The trial court’s oral findings f ocused on the allegations that A ppellant5 violated his probation by leaving his county of residence and changing his approved residence without his probation officer’s consent, but the prosecutor was able to coax what appears to be a further oral finding that A ppellant violated his probat ion by committing the new law violations in Duval County as an

accessory.
Given the somewhat ambiguous nature of the tria l court’s oral findings and the lack of any written findings, we reverse and remand with direction s that the trial court make an expre ss determination whether A ppellant’s probation should be revoked based on the new law violations. See Manis v. State , 30 So. 3d 586 (Fla. 5th DCA 2010).

III.

The trial court’s written order of revocation does not specify the conditions of p robation that we re violated by A ppellant. “If a trial court revokes a defendant’s probation, the court is required to render a written order noting the specific conditions of probation that were violated.” King v. State , 46 So. 3d 1171, 1172 (Fla. 4th DCA 2010). The S tate properly concedes that this case must be remanded for entry of a written order specifying the condi tions of probation violated by A ppellant. See Davis v. State , 218 So. 3d 507 (Fla. 1st DCA 2017); Leggs v. State , 27 So. 3d 155 (Fla. 1st DCA 2010).

A FFIRME D in part

, R EVERSED in part, and R EMANDED for further proceedings

.

M AKAR , O STERHAUS , and J AY , JJ., concur

.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

Andy Thomas, Public Defender

, and Joel Arnold, Assistant Public Defender, Tallahassee

, for Appellant.6 Pamela Jo Bondi, Attorney General

, and Frank Xavier Moehrle, Jr., Assistant Attorney General, for Appellee.